Pierce v. Randolph , 12 Tex. 290 ( 1854 )

Hemphill, Ch. J.

The first error is as to sustaining the plea that the note was given for an illegal object, and one which was immoral in its tendency and contrary to public policy, and in connection with this, we will consider the first branch of the charge of the Court, to the effect, that if the jury believe that the note was given as a forfeit on the running of a horse race, and that such races are immoral in their tendency and tend to breaches of the peace, then the note is based on an illegal consideration, and the plaintiffs are not entitled to recover.

It requires no discussion to show that the plea is bad, and that the charge of the Court is in direct contravention of the law as it has always been held in Texas, and as it has been repeatedly decided and declared by this Court. If anything can be settled by law and judicial decision, then is the right to recover for wagers and forfeits on horse races a settled question. (1 Tex. 89 ; 6 Tex. 454 ; 8 Tex. 10 ; 9 Tex. 260.) But it seems a new rule has been discovered, by which to test the validity of contracts, and that is, the belief of the jury with regard to their tendency to immorality and breaches of the peace, and this even where such contracts have been declared by the Court of the last resort to be valid in law, and to have all the force and efficacy which the law can impart to any contract. No doctrine more subversive of law and of private and public rights could have been devised.

In fact it sets them afloat upon public sentiment, to fluctuate and rise and fall with the ebbs and flows of popular opinion, and when brought to trial, to succeed or fail, not according to established rules of law, but upon the belief, the private opinions, or in other words the whims and caprices of the jury before whom they are presented. The most sacred rights, those most cherished by the law, may be frustrated and defeated, if without any regard to the law, a Justice of the Peace with his jury, might deem them against morals, good order or public policy. Under this doctrine, not only would contracts for the sale of spirituous liquors, for public barbacúes, or secular exhibitions of any kind, which would attract masses of people together, most likely be deemed nullities, but the regular physician might fail to recover for his rights and his services if his rights were submitted to a jury of hydropathists, who might believe them to be dangerous to the health and life of the patient. The rights to lands, however clear, under patents and deeds, might suddenly be lost under the operation of agrarian principles by which the jury or some of them might be infected, and who, in their conscience, might believe that one hundred and sixty or three hundred and twenty acres were the extreme limit which should be allowed to any single individual, and to suffer more to be recovered or enjoyed would be destructive of the equal rights of others and at war with sound public policy.

But it' is useless to multiply instances of the danger of such a doctrine. They will readily suggest themselves to any reflecting mind.

It is the duty of both Judges and juries to decide on rights according to the laws of the land, and not on their belief of what ought to be law. Their office is not legislative; it is. judicial; it is to administer the law as they find it, and not to exalt their own belief or notions above the law, and follow these as a higher code by which the rights of the community are to be regulated or controlled.

But, notwithstanding the errors in overruling the exception and in the charge of the Court, yet as the action was brought on the note, instead of the second contract, the judgment must, be sustained. There is an important difference between the two contracts. In the first, the forfeit is payable in cash, and the wager on the race in property. On the latter, the order is reversed, the forfeit being payable in property, and the wager-in cash.

It was manifestly the intention of parties, that the first should be superseded by the second contract. This inference is deducible from the contracts themselves. Consequently, the note should have been surrendered and the action brought on the second and not on the first contract.

Judgment affirmed.